WASHINGTON — A federal appeals court heard arguments on Tuesday in a pair of cases involving disputes between President Trump and the Democrat-controlled House that each raise a technical, yet constitutionally momentous, question: May a chamber of Congress sue the executive branch?
In more than two hours of arguments before the Court of Appeals for the District of Columbia Circuit, many of the judges appeared to be looking for a way to side with the House without opening the door to a floodgate of future lawsuits over routine political fights. The disputes involve a subpoena to a former White House lawyer and spending on a border wall.
The eventual ruling by nine of the 11 active appeals court judges — two others, both former White House aides to Mr. Trump, recused themselves — may only be a way station for the dispute. The losing side is likely to appeal to the Supreme Court for a definitive pronouncement, given the long-term constitutional stakes.
“These cases, both of them, are big deals,” Judge Patricia Millett said during the arguments.
Douglas Letter, the general counsel for the House, agreed with her. He said that if the court accepted the Justice Department’s argument that the House has no standing to sue the executive branch, “congressional oversight as it has been known in this country for years is going to change and be very different.”
Because of the coronavirus pandemic, the court heard the arguments by teleconference, prompting some confusing moments. One judge left the phone line open without muting and someone could be heard talking as a colleague questioned the Justice Department lawyer, Hashim Mooppan. The audio feed, streaming online for the public, cut out at times.
The substance of the two lawsuits is significantly different.
The case over the subpoena to Mr. Trump’s former White House counsel, Donald F. McGahn II, pits a president’s power to keep information secret against Congress’s power to gather information for oversight and potential impeachment. The House subpoenaed Mr. McGahn for testimony about Mr. Trump’s attempt to obstruct the Russia investigation, but the administration argued that top White House aides are immune from subpoenas about their official duties.
The case over the border wall involves the scope of Congress’s power to control how taxpayer funds are spent. After Congress balked at spending as much on Mr. Trump’s signature border wall with Mexico as he wanted — an impasse that led to the longest government shutdown in history — Mr. Trump declared a national emergency and claimed he could redirect military funds appropriated for other things for use in wall construction.
The House filed lawsuits in both cases — a tactic that was once vanishingly rare but has become increasingly common — and each ran into the same roadblock: The administration argued that the House has no standing to go to court and seek judicial adjudication of such a dispute — even if a president is, in theory, acting illegally. Instead, it argued, lawmakers have to rely on political tools, like withholding funds for a presidential policy or impeachment.
Mr. Mooppan pressed forward with that argument on Tuesday, contending that there was scant history of a chamber of Congress filing a lawsuit challenging an executive branch action, and that protecting its institutional interest in getting information or making spending decisions was not the kind of individualized injury that creates legitimate standing to sue.
“Adjucating such interbranch disputes would shift power from the executive branch to the legislature and politicize the judiciary,” he said, adding, “Judicial interventional in this political tug of war risks damaging public confidence in the impartiality of this circuit.”
But Mr. Letter argued that such lawsuits had been rare because unlike Mr. Trump, previous presidents of both parties negotiated accommodation with Congress in disputes over access to information, and that no president had blown through the norms of self-restraint on federal spending and emergency power like Mr. Trump had done.
Invoking Mr. Trump’s vow to stonewall “all” congressional subpoenas and a comment by his then acting chief of staff, Mick Mulvaney, that Mr. Trump was determined to deliver on his campaign promise to build a border wall “with or without Congress,” Mr. Letter argued that core checks and balances were a stake.
The arguments came one day after the Trump administration notified Congress of its latest maneuver in shifting around Pentagon money to use military funds for wall construction.
In a memo obtained by The New York Times, Defense Secretary Mark T. Esper said he was restoring funding for 22 military construction projects that he had previously deferred to take their funding for Mr. Trump’s wall, and instead placed 19 other projects on the deferred projects list.
The newly deferred projects include an $11.8 million detainee legal office and communications center at Guantánamo Bay, Cuba, and more than $270 million in projects associated with a program the United States started to deter Russian aggression in Europe after it annexed Crimea from Ukraine. The move prompted fresh expressions of outrage from Democrats, who once again accused Mr. Trump of acting lawlessly.
The Trump administration’s conduct received little friendly discussion from the bench, either. Judge Thomas B. Griffith, an appointee of President George W. Bush who wrote an earlier, now essentially erased decision for a panel saying Congress had no standing to sue over the McGahn subpoena, spoke acidly of Mr. Trump’s uncompromising response to oversight.
“How is Congress to conduct its constitutional duty of oversight in the face of the type of utter disregard this administration has shown for that oversight?” he asked Mr. Mooppan. “Hasn’t this administration eschewed the traditional norms of compromise and negotiation you rely upon in your argument so heavily?”
Mr. Mooppan, however, defended Mr. Trump’s record as similar to that of previous presidents.
Mr. Letter told the judges that permitting lawsuits to enforce subpoenas would not lead to a flood of such litigation because they took so long that Congress would only use them as a last resort. But it could make a big difference, he said, because knowing lawmakers could sue in theory would create an incentive for future presidents to negotiate compromises.
He also said that the court could draft a narrow opinion permitting congressional lawsuits over alleged misspending of public funds without opening the door to lawsuits whenever there is a dispute over how to interpret the scope of a president’s legal authority. But Mr. Mooppan argued that it would not be so simple to prevent a deluge of litigation.
Although there is no fixed partisan implication to the dispute — the two parties trade control of the White House and Congress — judges appointed by Republican presidents have sided with the Trump administration in the two cases, while judges appointed by Democratic presidents have sided with the House.
If that pattern continues, the appeals court appears likely to side with the House: Without the two recused appointees of Mr. Trump, it has seven appointees of Democratic presidents and two of Republican ones. But at the Supreme Court, five of the nine justices are Republican appointees.
Emily Cochrane contributed reporting.
Source: Elections - nytimes.com
